Infrastructure Bill [HL], Serious Crime Bill [HL], Armed Forces (Service Complaints and Financial Assistance) Bill [HL] - Delegated Powers and Regulatory Reform Committee Contents

Armed Forces (Service Complaints and Financial Assistance) Bill [HL]

14.   The Bill had its Second Reading on 23 June. It sets out a new statutory regime for the making and determination of service complaints, including the establishment of a Service Complaints Ombudsman, and it enables the Secretary of State to give financial assistance for activities which are intended to benefit the armed forces community.

15.   The Ministry of Defence have prepared a memorandum for the Committee explaining the delegated powers in the Bill.[3] Other than the provisions at the end of the Bill dealing with commencement, and allowing the provisions of the Bill to be extended to the Channel Islands etc., the only delegated powers are in clause 2 which inserts new sections 340A to 340O into the Armed Forces Act 2006 ("the 2006 Act"). These new sections contain a number of delegated powers, since they operate primarily by providing for the new system for redress of complaints to be set out in Defence Council regulations. Some regulation-making powers are also conferred on the Secretary of State. This structure substantially reflects the structure of the existing legislation, and many of the delegated powers in the new provisions reflect powers conferred under the old. Generally where this happens the same level of Parliamentary scrutiny applies. There is one significant difference in that under the new sections of the 2006 Act the Defence Council regulations are to be made by statutory instrument and are subject to the negative procedure, whereas under the old provisions they are not made by statutory instrument nor are they subject to any Parliamentary scrutiny.

Clause 2 - Grounds of admissibility for service complaints

16.   New section 340B(4) of the 2006 Act requires the regulations to provide for a decision to be taken on the admissibility of a service complaint, with provision for that decision to be reviewed by the Service Complaints Ombudsman. The requirement for a decision on admissibility is a new element to the redress of complaints procedures which does not appear in the existing provisions. Admissibility for these purposes is defined in section 340B(5). There are three elements to the definition: a complaint is inadmissible if it is about a matter excluded from being the subject of a complaint under regulations made under section 340A(4); if the complaint is made outside the time limit set out in the regulations; or if it is inadmissible on any other ground specified in service complaints regulations (see section 340B(5)(c)). The first two are matters which are referred to in the existing legislation. There is, however, nothing in the existing legislation equivalent to the power conferred by section 340B(5)(c) to specify in regulations other grounds on which a service complaint can be held to be inadmissible.

17.   Regulations under section 340B are dealt with in paragraphs 17 to 20 of the department's memorandum. We were again surprised that no explanation was included in the memorandum for what seems to us to be an important delegation of powers under section 340B(5)(c). In our view the powers are potentially very significant in that they allow additional restrictions to be imposed on a person's right to have a complaint dealt with under the new redress procedures. At the same time the powers conferred by section 340B(5)(c) are very wide: they contain no limits on the kinds of matters which might be specified in the regulations as grounds for a service complaint to be inadmissible. Given the importance of the power and its potential to limit the right to bring a service complaint, and the lack of any restrictions on the matters which may be specified under the regulations, we consider the delegation of powers conferred by section 340B(5)(c) to be inappropriate.

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